The cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad (t/a Clifton House Residential Home) 2018 EWCA Civ 1641 consider the issue of sleep-in workers and national minimum wage.
In both cases, care workers were employed to provide care and support to their respective clients. As part of their contractual terms of employment they were required to work day shifts and sleep-in shifts.
In the case of Ms Tomlinson-Blake, she provided care for two individuals at two properties and was required to carry out a sleep-in shift between 10pm and 7am, for which she was paid a flat rate of £22.35 plus an hour’s pay of £6.70. This equated to a total of £29.05 for a nine hour shift. She was required to spend the night at or near their properties and provide assistance as necessary. The rest of the time she was expected to sleep.
In the case of Ms Shannon, she was employed in a residential care home providing care for up to 16 residents and was required to be in the staff flat from 10pm until 7am. She was paid £50 per week initially which subsequently rose to £90 per week. She was also provided with free accommodation all year round. Both were expected to be available to provide care and support during these hours but neither were assigned specific tasks.
The Court of Appeal considered whether the whole of the sleep-in shift constituted working time for the purposes of the National Minimum Wage. It concluded that the workers were available for work during their sleep-in shift but they were not actually working. As such, only the hours during which they were required to be awake counted towards working hours for the purposes of the NMW.
Coincidentally, our final focus case concerns another care home, Patel v Folkestone Nursing Home Limited 2018 EWCA, which is another Court of Appeal decision. This case considers the effect of a dismissal where an employee successfully exercises their contractual right of appeal to their dismissal.
The employee, a healthcare assistant, was dismissed on grounds of gross misconduct. He exercised his right of appeal under the contractual disciplinary procedure in his contract of employment and was subsequently informed that his appeal had been successful. His employer communicated this to him, stating that they would be in contact to arrange his return to work. The employee decided he did not want to return to work and, as such, pursued a claim for wrongful and unfair dismissal. Early in proceedings, the issue arose as to whether there was a “live” dismissal at the date he brought proceedings.
The Court of Appeal held that the contractual right of appeal against dismissal implied that, if successful, both employer and employee were contractually bound to treat the dismissal as having no effect. A reasonable person in the employee’s position would expect the contractual rights and employment relationship to be restored upon being informed their appeal was successful.
